Government response to legal challenge over proposed SEND reforms claims there is “no duty to consult in public law” on certain changes

The claimant is seeking to challenge the lawfulness of the consultation ‘SEND reform: putting children and young people first’, in relation to changing the powers of the SEND Tribunal, and placing the duty to deliver the educational offer in an Education, Health and Care Plan (EHCP) on schools, as opposed to local authorities.

In a letter before claim, lawyers on behalf of the claimant alleged the Secretary of State has acted unlawfully because she has failed to ask questions about these matters in the consultation, and proposed the following three grounds:

1. Unfairness / irrationality in scope of the consultation.
2. Breach of the Tameside duty of inquiry.
3. Unfair / unlawful consultation by failure to comply with the second Gunning principle (failure to give sufficient reasons for any proposal to permit intelligent consideration and response).

In a response to the letter before claim, the Secretary of State for Education indicated that there is no duty to consult on certain elements of the proposed reforms, including changes to the powers of the SEND Tribunal and proposals to shift the legal duty to secure provision in EHCPs from local authorities to schools, in part because decisions on these issues have already been made.

The Government Legal Department on behalf of the Secretary of State for Education wrote: “We take first your suggestion that the Secretary of State has failed to comply with the second Gunning principle.

“Here there is no duty to consult. There is no general duty to consult in public law. 

“[…] A duty to consult has nevertheless been recognised in three limited situations: (a) where there is a statutory duty to consult; (b) where a legitimate expectation to consult has been created (through promise or established past practice); and (c) in exceptional circumstances where not consulting would create conspicuous unfairness. […] Your letter does not identify any of these situations as being applicable to the circumstances here.”

The letter continued: “In any event, if something has already been decided upon, and there is no duty to consult in relation to the subject matter of that point, then Gunning simply has no application.”

Lawyers acting for the claimant revealed last week they are “writing urgently” to the Government Legal Department, “seeking clarification on when these decisions were taken, and requesting disclosure of relevant documents”.

Polly Sweeney, partner at Rook Irwin Sweeney, said: “It is deeply regrettable that the minister has already made decisions on reducing powers of the Tribunal and removing important legal rights of disabled children and their parents, without consulting on these aspects of the reforms. We are considering the position carefully with our client and are writing to request further information.”

Melissa Hayhurst, the mother of the claimant, added: “The fight is not over. Families need to understand what is at stake and use their collective voice. If we don’t speak up now, decisions about our children’s futures will be made without us.”

Polly Sweeney and Beth Parr of Rook Irwin Sweeney are acting for the claimant, with pro bono support from Steve Broach KC of 39 Essex Chambers.